ORDER
J.M. Seth, J.
1. This is a revision Petition filed by the husband, the opponent in Miscellaneous Application No. 9 of 1969, against his wife, the petitioner in that case, against the order passed by the learned City Magistrate, 5th Court, Ahmedabad, directing him to pay Bs. 100/. per month with effect from 29.1. 1969. the date of application towards, her maintenance and to pay Rs. 100/- by way of costs to the wife. It was a proceeding taken out by the wife against her husband for maintenance Under Section 488 of the Criminal Procedure Code on the ground that she was the legally wedded wife and her husband had neglected and/or refused to maintain her.
2. The marriage between the parties took place sometime in the year. 1942 A. D. as mentioned in the agreement, Ex. 4. dated 16-1.1965. During that wed.look, one son named Sukhdev was born who has now become major. As the husband was illtreating the wife and furthermore, he had kept a mistress named Pushpa Lilaram, she had started residing separately under an agreement whereby the husband had agreed to pay Rs. 100/- per month to her by way of maintenance. That agreement was executed on a stamp paper and the husband had agreed to send Rs. 100/ every month by money-order. He did it for sometime and she accordingly stayed separately. From the month of August 1968, he did not send that amount :and hence a notice, Ex. 5, was given by her to him through her Advocate demanding the arrears. In reply to it, he gave an evasive answer and stated that as she was staying separately from him since the year, 1964 A.D. she had cease to be his wife. There had been no divorce and the marriage was subsisting. As this husband had kept a mistress named Pushpa, he does not want to keep her and does not want to maintain her. He has good property and has got a factory, car, etc. and earns Ra. 3,000/. per month. Rs. 250/. per month would be required for maintaining herself, in these days of high cost of living and to live a life which she bad lived up-till now. She, therefore, claims maintenance on that basis.
3. The significant fact to be borne in mind from the reply, Ex. 2, given to this application by the present petitioner (husband) is that he has not taken up a contention that such an application cannot be entertained in the Criminal Court in view of the provisions of Sub-section (4) of Section 488 of the Oriminal P.C., (which will be hereinafter referred to as the Code), as the parties had agreed to live separately by mutual consent and they were so living. On the contrary, he asserted that there was no free consent given by him to pay any such maintenance amount of Re. 100/. per month. His wife was in illicit connection with one Natwarlal, serving in the Municipal Corporation and her conduct was very doubtful. In those circumstances. under coercion and pressure, his wife’s relations had taken his signature on one paper. He had raised a protest in that behalf. He had not refused to maintain his wife and had not neglected to maintain her. He had not ill treated her. He had stopped his confectionary business wherein Bai Pushpa was his partner. He had no other relations with her. He is without any business and is unemployed. The application should, therefore, be rejected.
4. Wife Labhkaur was examined at Ex. 3. Husband Ajitsingh was examined at Ex. 8,on his behalf and he examined one Devendra-bhai at Ex. 11 also. The wife produced an agreement, Ex. 4, dated 18th January. 1965 and a notice given by her at Ex. 5. The husband also produced a partnership-deed entered into between him and Bai Puahpa, and the alleged affidavit of Sukhdev, referred to as the son of the parties.
5. The learned Magistrate, on consideration of the evidence, came to the conclusion that the allegations made by the husband about the wife’s illicit connection with one Natoarlal were false. He found that this husband had kept one Bai Pushpa as a mistress. Due to it, circumstances were created by him which compelled the wife to live separate and the wife was given maintenance for sometime as pet agreement, Ex. 4. He found that this husband even though he had entered into such an agreement, came forward with a false story that he had not executed it voluntarily. That contention was ultimately given up at the time of arguments. Even after the execution of such an agreement, he, after sometime, stopped payment of the maintenance amount, He declined to keep her with him on the ground that he had given over the possession of the rented property. It was merely a ruse. The wife had given a counter offer to solve that accommodation problem as she had herself kept rented premises whirein she was prepared to stay with him, but the husband declined to stay there. He, therefore, found that this husband was not prepared to stay with his wife and that was presumably with a view to his staying with his concubine. It was the version of the husband that Bai Pushpa was the sister of his friend and that is why he had come into contact with her. The learned Magistrate, on consideration of the evidence, found that this husband no doubt, had stopped his confectionary business, but be must have other income. The wife’s version was that he was doing transport business and was also doing the work as a building contractor. His version that he had no means, was false. The fact that he was wearing a costly terelyne suit and was having a fine wrist watch on his hand, as admitted by him in his evidence was indicative of the position that he has sufficient means. To defeat the claim of the wife he has come forward with this story. He, therefore, passed the impugned order.
6. The only argument advanced by Mr. M. 0. Shah, appearing for the petitioner was that the Criminal Court had no jurisdiction to grant such maintenance amount in view of the provisions of Sub-section (4) of Section 488 of the Code. He urged that the moment such an agreement like the agreement, Ex. 4, was entered into, as a result of which parties lived separate and the husband agreed to pay maintenance amount, Sub-section (4) of Section 483 of the Code would be attracted and that would bar the jurisdiction of the criminal Court in entertaining such an application. He urged that the circumstances anterior to such an agreement which may be responsible for the execution of such an agreement were irrelevant and immaterial. The reason why the wife agreed to live separate and take maintenance at tie rate of Rs. 100/. per month as per that agreement was immaterial and irrelevant. The original Court cannot go behind that agreement and try to find out whether there were any circumstances compelling the wife to agree to live separate. That is the basis of the application filed Under Section 488 of the Code, submitted Mr. Shah, is immaterial. The moment such an agreement is established, the court cannot inquire into the circumstances that led to such an agreement. The Court is obliged to stay its hands. On account of a breach of such an agreement one has to approach the civil Court for the enforcement of it. It was urged by him that really this light of maintenance given to the wife was a civil right. It culminated into an agreement and the moment that was so, the remedy of the party agreeing was to enforce that obligation in a civil Court and cannot come to a criminal Court Under Section 488 (1) of the Code and get its wrong redressed by resorting to such a speedy and summary remedy. In short, his argument was that if the party to such an agreement commits a breach, it is not a violation of any marital obligation so that the wrong could be redressed by resorting to Section 488 (1) of the Code; it is a breach of a contractual obligation. The remedy to enforce it would, therefore, be to approach a Civil Court. If such a suit is filed to enforce such an obligation, the question of neglect or refusal to maintain would be undoubtedly inelevant and immaterial.
7. Mr. Shah further urged that Sub-section (4) of Section 483 of the Code has no reference to refusal or neglect. It does not contemplate a separate agreement fox maintenance. It con templates only separate stav by mutual consent. The moment these is such an agreement, to live separate, the juries, diction of the criminal Court would be barrel, One may agree to such a course for variety of reasons, The criminal Court cannot inquire into those reason The moment it is proved that the parties are ad idem, the Criminal Court’s jurisdiction will be ousted.
8. In reply to these arguments, Mr. Ohhaya, learned Assistant Government Pleader appear, ing for the State and Mr. H. L, Fatel, appearing for the wife, contended that the important word a to be interpreted are :
if they are living separately by mutual oonsent.” They find place in subs. (4) of Section 488 of the Code. It is only if the parties without any compulsion of events or circumstances, out of their own free-will and volition decide to live separately by mutual consent, independently and each intends to live as he or she likes by smb. separate residence, it could be said that they are living separately by mutual consent. That is what the legislature really intended to convey by the use of such a phraseology. If the wife is obliged to stay separately, and agreed to live separate, as the husband has kept a concubine, and so it is not possible to stay with him, and the husband .. has agreed to pay her maintenance, it could not be said that she has been Having separately mutual consent. The circumstances prevailing, obliged her to live separate. Under law she was entitled to live separately from the husband when the husband began to keep a concubine, If such a husband, after entering into suoh an agreement, for sometime gives the maintenance amount agreed and thereafter stops it, the wife’s right to claim main, tenance on proof of the necessary facts refer. ed to, in Sub-section (1) of Section 488 of the Code, cannot be taken away. It was urged that this was not a case where the wife had come to a Criminal Court to enforce the obligation in-curred by the husband on account of the agreement, Ex. 4. She had come to the Criminal Court for having this speedier remedy on the ground that she was the legally wedded wife of her husband and the husband had refused or neglected to maintain her. It is only on the proof of those facts that she would be entitled to claim maintenance.
9. For appreciating these rival contentions urged at Bar, I would first like to refer to the two material Dub-sections (1) and (4) of Section 468 of the Code. Sub-section (1) reads:
(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for E& maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
Sub-section (4) reads-
(4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery: or if, without any sufficient reason, she refused to live with her husband, or if they are living separately by mutual consent
In my opinion, it will be more precise to say that Sub-section (4) of Section 488 of the Code enumerates what would be good defence to a husband when such an application has been filed by the wife and the wife is able to prove the necessary facts referred to, in Sub-section (1) of Section 488 of the Code, she would be disentitled to receive suoh maintenance from her husband, if she is living in adultery. She would be entitled to such maintenance, if without any sufficient reason she refuses to live with her husband. She would be also disentitled to claim such maintenance, if they are living separately by mutual consent. The Court will have jurisdiction to grant maintenance if the conditions referred to, in Sub-section (1) are satisfied. But in that event, the husband can show that the wife has become disentitled to it in view of any of the conditions existing, as referred to, in Sub-section (4).
10. It is significant to note that some words that find place in Sub-section (3) of Section 438 of the Code in the proviso were added by Act No. 9 of 1949 by Section 2 of that Amending Act. Those words are :
If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife’s refusal to live with him.
It is thus evident that as the Section stands now, a husband’s contracting marriage with another wife or keeping a mistress is considered to be a just ground for his wife’s refusal to live with him,
11. It is true that there is conflict amongst several High Courtis in regard to the interpretation of this Sub-section (4) of Section 488 of the Code. I will first refer to the decisions of those High Courts which, to a certain extent lend support to the arguments advanced by Mr. Shah.
12. In Bameashi Mondal v. Nirode Barani Dasi A.I.R. 1948 Cal 186, Lodge, J.,haa observed at pages 186 and 187 as under :
It is clear that since 1942, if not earlier, the husband has been denying that the petitioner is his wife. He insisted that she had no claim on him that he had no claim on her and that he would not keep her. This means dearly that he consented to her living apart. The wife in 1942 dropped the proceedings Under Section 488, Criminal P.C. and consented to give up her claims to live with her husband and adopted Bs. 1,000 as consideration. It seems to me perfectly clear that the parties both consented to living apart, at all events in 1942 and until the present application was filed. It is altar, therefore, to my mind that the parties were’ living separately by mutual consent until the application Under Section 488, Criminal P. 0- was filed. In these circumstances, it seems to me that Sub-section (4) of Section 488, criminal P.C. is a bar to the wife being granted any allowance under the provisions, of this section. Whether she may claim by any other procedure is a matter on which I express no opinion.
It is significant to note that the agreement was entered into by the husband’s brother and the wife agreed to give up all future claims. The wife gave up all the future claims and accepted a Bum of Bs. 1000. Thereafter she lived apart from the husband. It, therefore, means that the facts in that case were that the wife on acceptance of a lump sum of money, gave up her claim regarding future maintenance and agreed to live separate and was living separate for years together. The husband was avoiding her claim from the very beginning and it was at the intervention of her husband’s brother that the agreement was arrived at, when they agreed to pay Es. 1,000/. and they were paid accordingly. That decision can be distinguished also on facts.
13. In Krishnappa v. Sivagami Aohi , Eamaswami J. (as he then was), narrated the fasts as under :
The short facts are: Sivagami Achi.the res-pondent before us, is the lawfully wedded wife of Kriahnappa Chettiar. Krishnappa Ghettiar and Sivagami Aohi could not carry on their married life by 1948. This Chettiar, as is common in these parts, was keeping a concubine and wanted to take a second wife also. Therefore, the husband and wife entered into an arrangement, which has beep marked as Ex. P 1, and it is nobody’s case that this arrangement was not entered into or that the husband is going be. hind Ex. D. 1.
14. Agreement, Ex. D.I revealed that a lump sum of Bs. 5,500/’ was given. A mortgage was to be created for a particular sum. Furthermore, some amount was agreed to be paid per annum. The wife thereafter made an application Under Section 488, asking for maintenance of Bs. 100/ per month instead of Bs. 100/. per annum, which had been secured for her by Ex. D.I. It was in relation to those facts that Bamaswami J. observed :
There oan be no doubt that a Magistrate purporting to act under this section, cannot assume the functions of a Civil Court and give judgment in accordance with a bond evidencing a compromise entered into between a husband and a wife. Where a olaim for maintenance is amicably settled by the parties, the Magistrate should simply dismiss the petition if pending before him.
15. The main decision on which reliance has been placed by Mr. Shah is a decision of a Division Bench of Saurashtra High Court in Govindram v. Batanbai Nathuram A.I.R. 1956 Sau 105. At page 107 it has been observed :
Therefore, by reason of the applicant’s second marriage the opponent would be justified in living separate, and if the applicant does not maintain her then that would amount to his neglect or refusal entitling her to an order of maintenance from the Court. But the facts here are sufficient to take the oase out of the ambit of the above rule. There is already a compromise between the parties providing for separate maintenance in case the wife and husband did not agree and she wished to live separate from him. That com-promise is binding on both the parties, what, ever may be the reason for her living separate. –
As it is, after the compromise she lived only for a few days with the husband and then left him voluntarily. Since then she has lived separate for about eleven or twelve years. It may be, she can live separate from the husband on the tatter’s taking a second wife; all the same her remedy is to enforce the compromise which is subsisting and she can-not ignore it and insist on the husband paying her maintenance otherwise than in pursuance of the compromise.
If she herself does not care to ask for the maintenance provided for by the compromise and ignores the compromise altogether, the situation is of her own choosing and not because of the husband’s neglect or refusal. Her obvious remedy is to enforce the compromise in a civil Court and an application Under Section 488, Criminal P.C., should not be entertained.
In support of that proposition, the Division -Bench of Saurashtra High Court has relied upon Budhu Rama v. Ehem Devi A.I.R. 1926 Lab F469. and Sham Singh v. Mt. Hakam Devi AIR 1930 Lab 524. This decision undoubtedly supports the argument advanced by Mr. Shah. With respect if I may say so, it does not lay down the correct principle. If the wife is obliged to live separate and agree to take maintenance agreed upon, on account of com. palling circumstances as to where the husband has married another wife and has kept a concubine and it is not possible to stay together, it could not be said that the wife is living separately by mutual consent, Living separate by mutual consent can only be inferred if both the sides on their own, independent of circumstances and without any compulsion of events or circumstances, agree to live separately, possibly each desiring to live the life he or she likes, it could be said that there is such separate living by mutual consent. It is only in such cir euros tan 088 that the legislature intend ed to disentitle the wife to claim maintenance by this speedier remedy provided Under Section 488 of the code. It is only when such facts are proved, there would be a good defence for the husband to disentitle the wife to claim maintenance. If such an interpretation is not given to these material words in Section 488 (4) of the Code, the husband would get a good handle to enter into such an agreement, pay her for sometime and then stop paying. The wife would not be in a position to take this summary remedy. For that, the wife will have to tile a suit and to get a decree for maintenance. That is not what appears to have been eon-, templated by the legislature. It appears that the legislature intended that there would be a good defence in case the wife has agreed to live separately by mutual oonsent, independent of circumstances and not under the compulsion of events or circumstances which obliged her to live separately and has accepted such an agreement to get maintenance at a particular rate.
16. One another significant fact to be borne in mind is that this is not a case where the wife has come to enforce the obligation arising under agreement, Ex. 4. If that was so, it could be said that the criminal Court could not entertain such an application. It is only the civil Court that could do it. Before the wife becomes entitled to claim maintenance under Sub-section (1) of 8. 438 of the Oode, she has to satisfy the Court that she is the legally wedded wife of her husband; the husband has sufficient means; and the husband has refused or neglected to maintain her. If she is living separate and she has no sufficient reason to live separate, she would be disentitled to claim maintenance. Furthermore, if any one of the conditions referred to in Sub-section (4) of 8. 483 of the Code is established, in that event also, she would be disentitled to claim any maintenance. I am, therefore, of the opinion that the Court is entitled to inquire into the anterior circumstances, that led to such an agreement. It will not be ‘correct to say, in my opinion, that on a mere look at the agreement like agreement, Ex. 4, the Court’s jurisdiction will be taken away as has been urged by Mr. Shah. It is true that in this agreement, Ext. 4, the mention made is:
Whereas the party of the first part and the party of the second part were married in the year, 1942, Jilla Bhekhupura, West Pun jab, and since that date the party of the first part and the party of the second part were living as Husband and Wife at Ahmedabad for the last 20 years and one son who is aged about 21 years, namely Bhivodevaingh alias Sukhdev (name given by father) is the outcome of this marriage, There were quarrels and exchange of hot words between the parties of the first part and the party of the seoond part and there was no family peace and as suoh the parties have mutually decided to live separately from to day and it has been mutually agreed that the party of the firBt part will give Rs. 100/(rupees one hundred only)per month towards monthly maintenance to the party of the seoond part and the seoond party has also agreed to this.
It has been further provided therein :
The second party withdraws the registered A. D. Notioe given to the first party D/.;26.12. 1964 and the first party also withdraws his registered A. D. reply D/- 1-1-1965 given to the Advocate of the second party. All the disputes upto this date between both the parties regarding maintenance have oome to an end.
It is also provided in Para. 2 of that agreement that the amount shall be remitted to the party of the second part by money order on every first of the calendar month and if the party of the first part fails to pay the agreed amount per month, the party of the second part will be entitled to take her remedy according to law.
17. It, therefore, does not indicate that there was any agreement that Bhe would not be entitled to claim maintenance Under Section 488 (1) of the code.
18. Mr. Shah has laid emphasis on the recitals made in this deed that the parties had agreed to live separately by mutual consent. He, therefore, urged that it was not within the jurisdiction of this Court to inquire into the anterior circumstances that led the parties to enter into such an agreement. On a mere look at this agreement, the Court should throw away this application filed by the wife. I am not prepared to accept this submission as well founded. It cannot be said that on a mere such agreement without anything more, the jurisdiction of the criminal Court will be taken away. The Court has to look into the anterior circumstances and find out whether really the parties were living separately by mutual consent, as contemplated within the meaning of the words used in Sub-section (4) of 8. 488 of the code. This conclusion of mine gets support from several decisions to which I will make reference presently:
19. In Bam Saran Das v. Mt. Bam Piari A.I.R. 1937 All 115. Allsop J., has observed:
The mutual consent as used in Sub-section (4), Section 488, Criminal P.C., means a consent on the part of the husband and wife to live apart, no matter what the circumstances may be. Where wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman, it cannot be said that the husband and wife are living apart by mutual consent even if the husband does not insist that wife should live with him.
In that cage also, there was an agreement entered into and maintenance amount was fixed on certain conditions. The order was enforced on several occasions by the Magistrate. Finally, in February, 1936, Mt. Ram Fiari (Wife) made the application which had given rise to those proceedings. She Slid that her husband Bam Saran Das had not paid her anything since May, 1935 and she asked the Magistrate to take action against him to force him to make the monthly payments which were in arrears. The Magistrate passed the order in her favour. That order was challenged on the ground that Sub-section (4) of Section 488 of the Code contains a provision that no wife was entitled to receive allowance from the husband by mutual consent and, if there is a compromise in which it is agreed that the woman Bball live apart from the man, then it may be said that they are living separate by mutual consent. The relevant observations made therein are:
I do not think that the expression ‘mutual consent’ is capable of being interpreted in this way. I think the mutual consent as used in the Sub-section (4) of Section 488 means a consent on the part of the husband and wife to live apart no matter what the circumstances may be. Where a wife refuses to live with her husband on some specific ground such as cruelty or the fact that he vis keeping another woman, I do not think that it can be said that the husband and wife are living apart by mutual consent if the husband does not insist that the wife should live with him. If that expression had this meaning, a husband could. I imagine, defeat almost any conceivable application for maintenance Under Section 488, Criminal P.C. These applications are made for the most part if not always by women who are living apart from their husbands and who for some reasons are unable to live with their husbands. The husband in the first instance may attempt to defeat the claim by saying that he is : willing to support his wife if she will live with him, but if it is found that she has good reason for not living with him he can then turn round and defeat the claim by saying that he does not want her and it might then perhaps be said that there was mutual consent to a separation because she did not wmt to live with her husband and he did not want her to live with him. I do not ‘.think that the expression ‘mutual consent’ can be interpreted in this way.
The view taken in the Lahore decision has not been approved by Allaop, J.
20. In a later decision in Smt. Chameli v. Gajraj Bahadur , Bandhir Singh J., has taken the same view. He has also dissented from the view taken by the Lahore High Court in AIR 1926 Lah 469 and Sham Singh v. Hakam Devi AIR 1930 Lah 524, and the Calcutta view in S. V. Colbert v. Mrs. H. Colbert AIR 1933 Oal 776. The re. levant observations made by him at pages 34 and 35 are :
The learned Counsel for the applicant has citedTaralakshmi Manu Prasad in re A.I.R. 1938 Bom 499, in whioh the view taken by the Calcutta High Court was also discussed. The Division Bench of the Bombay High Court v in the reported case, however, came to the conclusion that the mere existence of a decree of a civil Court directing a certain sum to “be paid far maintenance did not oust the juris-diction of a Magistrate in a proper case to make an order Under Section 488, Criminal P.C. This view was in substance at variance with the view taken by the Lahore High Court, which held that an order embodying an agreement to pay maintenance passed by a civil or original Court would subsequently bar the jurisdiction of a Magistrate to entertain an application Under Section 488. The interpretation of the words ‘mutual consent’ has been the subject of a decision in a ruling of this Court? AIB 1937 All 115.
The facts of that earlier Allahabad decision have been referred to and the following observations of Allsop J. have been quoted :
Where a wife refuses to live with her husband on some specific ground such as cruelty or the fact that he is keeping another woman, I do not think that it can be said that the husband and wife are living apart by, mutual consent if the husband does not insist that the wife should live with him. If that expression had this meaning, a husband could, I imagine, defeat almost any conceivable application for maintenance Under Section 488, Criminal P.C.
After quoting those observations Bandhir Singh J., observed :
The words ‘mutual consent’ imply that the desire to live apart should emanate frois-both parties and that none of them should be forced to take recourse to separate living and ultimately to submit to it only as a result of circumstances brought about by one of the parties. If a husband is unwilling to allow his wife to live with him, or has taken a second wife, the only course open to such a wife would be to live apart and if she, under those circumstances, agreed to accept maintenance and live separate, such a separate living would not be deemed to be the result of mutual consent. The test, therefore, should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties, independently reached by each of them, or if one of the parties was forced to submit by circumstances to agree to separate living and payment of maintenance. The view taken by Allsop J. in A I R 1937 All 115 appears, if I may say so, with great respect, to be the correct view, and I find myself in complete agreement with it.
With respect, if I may say so, I am also in complete agreement with the view expressed by Bandhir Singh, J. and Allsop, J.
21. In Laisram Nipamaoha Singh v. Smt. Ehaidem Ningol Sakhi Devi A.I.R. 1965 Mani-pur 49. Rajvi Roop Singh., Judicial Commissioner, has also taken a similar view, observing:
The separate living, for not entitling the wife to get maintenance muat be the result of a deliberate and express agreement between the parties. The words ‘mutual consent’ in Sub-section (4) means a consent on the part of the husband and wife to live apart, no matter what the circumstances may be. Where a wife refuses to live with the husband on some specific ground like cruelty, or the fact that he is keeping another wife, the husband and wife cannot be said to be living apart by mutual consent if the husband does not insist that the wife should live with him. Where the husband is unwilling to allow his wife to live with him or has taken a second wife, the only course open to the wife would be to live apart and if under such circumstances she agreed to accept maintenance and live apart, such separate living would not be said to be the result of mutual consent. The test therefore, should be to find out if the agreement for separate living and payment of maintenance was the outcome of the desire of both parties, independently reached by each of them, or if one of the par. ties was forced to submit by circumstances to such agreement. Where the wife is not prepared to live in a separate house but insists on living with the husband, but he starts living separate or where the husband having an option to live with his wife chooses to live Separate, it is not that they are living separate. ly by mutual consent. But where each party finds it impossible to live amicably and comfortably with the other and is content that they should live separately, the separate living is by mutual consent. If the Court finds that they are living separately by mutual consent, it cannot pass an order under the section.
This point has been dealt at length by Grover, J. (as he then was) in Dr. Mukand Lai v. Smt. Jyotishmjti , wherein he was referred to the decision of the Madras High Court given by Rama3wami, J.,AIE 1953 Mad 549, decisions of the Lahore High Court, decisions of Calcutta High Court, deofr sion of the Saurashtra High Court and the aforesaid two decisions of the Allahabad High Court referred to, by me. The relevant observations made at pages 391 and 392 are ;
The essential question is what meaning is to be given to the words underlined (herein single quotation marksEd.). Mr. Manohanda has strongly relied on A.I.R. 1953 Mad 549, and the cases referred by Ramaswami, J. in that decision. There, an agreement has been entered into between the husband and the wife. It was held that the remedy of the wife did not lie Under Section 483, but she could file a civil Buit for denouncing the agreement or for getting enhanced maintenance on account of the rise in coats. Ratnaawami, J , however, did not discuss the matter fully as to what was the meaning of mutual oonaent as employed in Sub-section (4) of Section 488, Criminal P.C.
The test that has been laid down in some authorities that the Court should find whether the agreement for living separately was the outcome of the desire of both parties independently reached by them, or if one of the parties was forced to submit by circumstances to such an agreement, was not considered. Reliance was placed on a judgment of Dalip Singh, J., in A.I.R. 1926 Lah 469. In that case the learned Judge observed that once a compromise was entered into to pay maintenance, there was no refusal to maintain on the part of the husband and, therefore, Section 488 did not apply. In A.I.R. 1930 Lah 524, Addi. son, J., accepted the report of the Sessions Judge on the ground that a compromise had been effected in the course of proceedings Under Section 483 and therefore, no order could be made under the provisions of that Section itself.
In none of these cases any such question arose which is being considered in the present oase. In Nathun Sonar v. Mt. Matnrwa Kuer 49 Ind Cas 346 : AIR 1919 Pat 339, it was observed that a contract voluntarily and freely made and entered into between the parties by reason of the ill-treatment of the husband would be an act of their own volition. These observations were purely obiter as in that oase the husband and the wife were living apart in obedience to the deoree of a Fancha-yat and it was held that they could not be said to be living apart with mutual consent within the meaning of Sub-section (4) of Section 488. In S. W. Colbert v. Mrs. H. Colbert AIR 1933 Cal 776 (2), a compromise had been effected in proceedings for maintenance Under Section 488 and it was held that its enforcement came within the jurisdiction of a civil Court.
In that case there was no opposition to the rule and the point decided was of a different nature. In A.I.R. 1948 Gal 186, a compromise had been effected during proceedings Under Section 488 and the. parties had been living apart. It was held that they were living separately by mutual consent. A great deal of emphasis has been laid on a decision of the Saurashtra High Court in A I R 1956 Sau 105. In that case it has been laid down that where there is already a compromise between the parties providing for separate maintenance, the compromise is binding whatever may be the reason for the wife living separately.
It may be that the can live separately from the husband on the Jatter’s taking a second wife; all the same her remedy is to enforce the compromise which is subsisting and she cannot ignore it and insist on the husband paying her maintenance otherwise, than in pursuance of the compromise. Her obvious remedy is’ to enforce the compromise in a civil Court and not an application Under Section 488, Criminal P.C. Shah C. J., discussed largely the meaning and scope of the two provisions in Sub-section (3) of 8. 488. That provision, however, is not relevant in its entirety for deriding the point involved in the present case. With regard to the effect of living separately bb a result of a compromise, the learned Chief Justice referred only to certain Lahore cases and held that the remedy of the wife was to enforce the compromise in a civil Court. ‘To my mind the authority which is apposite for the purpose of the present case is the decision of Randhir Singh, J.,’ in A.I.R. 1954 All 33.
After quoting the relevant observations from the two decisions of the Allahabad High Court, the following pertinent observations have been made by Grover. J.:
Another weighty reason was imported by Randhir Singh, J., in support of the view whioh he adopted. According to him, if a party executes an agreement but does not pay maintenance or drives the wife to the neoes. sity of filing a suit for rooovery of maintenance from time to time and then takes protection under the provisions of Section 488 (4), it would be difficult for a woman entitled to maintenance to get an effective remedy in Courts of law. Section 488 has been enacted only to meet suoh contingencies and to save a party entitled to maintenance from a prolonged litigation and to get an effective remedy speedily and without muoh expense from a criminal Court.
With respect, I follow the view of Randhir Singh, J., in its entirety. Whatever doubts may have existed prior to the amendment of Section 488 by Section 2 of the Code of Criminal Procedure (Amendment) Act, 1949, it seems to me, that all the previous decisions which were largely based on the effect of refusal of the wife to live with the husband would no longer be good law, in view of the amended provision which is to the effect that if a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him.
If a husband decides to marry another wife and has actually married one, the first wife can legitimately claim to live separately, and if the husband an d the wife mutually agree, that she should do so, it cannot mean that the wife is living separately by mutual consent in the sense in which these words are used in Sub-section (4) of Section 488 of the Code of Criminal Procedure. The right which the law gives to the wife in Section 488, to live separately if the husband contracts a second marriage will be defeated if living separately by mutual consent is to be given, the meaning that whenever husband and wife decide to do so, whatever the compelling necessity for the same, it must be considered that they are living separately by mutual consent. ‘
The meaning to be attributed to these words in the context in which they appear must be the same as has been given by Ran-dhir Singh, J., in the Allahabad decision referred to before. Mutual consent, according to him, would apply to separate living ‘if such separate living was the result of a desire of both parties.’ This desire should be baaed on the volition of both the parties without any element of impelling or compelling circumstance. If a wife knows that the husband is determined to break up the marriage and to take another woman as his wife, and if she decides to live separately because of that reason. It cannot be said that the separate living is the result of any desire on her part to live away from her hearth and home willingly and without the element of compulsion forcing the decision against her will.
After laying down this ratio, in the light of the facts established, it was held,
In this view of the matter the decision of Jyotishraati to live separately after 1948 was not the result of a desire on her part to live separately because of her own seeking and personal volition, but she was compelled to do so on account of the force of circumstances in which she was placed. I hold, therefore, that the view of the Courts below was quite correct that Dr. Mukund Lai could not seek the assistance of the provisions contained in Sub-section (i) of 8. 488, Criminal P.C.
With respect I may say that I am in complete agreement with the view expressed by Grover, J., (as he then was) in this case. Similar view has been taken by S. B. Gapoor, J., in Sinfc. Gurdial Kaur v. Jang Singh .
24. There is one decision also of Hyderabad High Court in Rao Saheb v. Prayag Bai AlR 1956 Hyd 189. It could no doubt, be distinguished on the ground that in that case, it appears that there was no agreement to live separate. All that was agreed upon was that the husband was willing to pay certain amount specified in the agreement, i. e., as contemplated under Sub-section (4) of Section 488 of the Code.
25. Mr. Shah, appearing for the petitioner- husband, invited my attention to a decision of this Court in Ambalal v. Khembai (1969) lO.Guj L R 390. That decision is given by Shelat, J. The question for consideration before the Court in that case was-whether in a proceeding Under Section 488 of the Code, if the Court had passed an order on the basis of the agreement arrived at, between the parties before the Court, the Court can pass an order on the basis of that compromise. Differing from the view taken by the Lahore High Court, Shelat, J.. held that there was nothing in the provisions of Section 438 of the Code which disentitled the Court to act on the admissions of the parties and to pass an order on the basis of the compromise. To such a question posed before the Court, an argument was advanced, relying upon the case in Govindram Narandas v. Rat an bai Nathuram A.I.R. 1956 Sau 105, that the compromise cannot be enforced in an application Under Section 488 of the Code. In that behalf a passing reference has been made at p. 396 in these terms for distinguishing that case :
In that case, as the facts show, the matter was not settled during pendency of the application before the Magistrate Under Section 488 of the Criminal P.C., and what was sought to be placed before the Court was an agreement arrived at by the parties providing for separate maintenance in case the wife and husband did not agree and she wished to live separate from , him. That agreement was arrived at between them beforehand not in the proceedings before the Magistrate, and when suoh is the case, it is no doubt true that any such agreement can be enforced in the civil Court. That case, therefore, can have no application to’.the facts of this case.
These are the passing observations made to distinguish a particular case. They are merely in the nature of obiter dicta. It could not be said that the Court considered the question that is posed before me and laid down this ratio which will be binding on me. As a matter of fact, such a question did not arise in that case and has not been decided in that case.
26. It is true that in In re Taralakehmi AIB 1938 Bom 499, the Bombay High Court had not to decide this very question as has been urged before me, but it hal to decide a question whether such a proceeding can or cannot be taken Under Section 488 of the Code oa account of existence of a decree of a civil Court directing a certain sum to be paid for maintenance. In that connection a Division-Bench, consisting of Beaumont, C. J. and Sen, J., has observed:
The mere existence of a decree of a civil Court directing a certain sum to be paid for maintenance does not oust the jurisdiction of a Magistrate in a proper case to make an order Under Section 488. Of Course, the existence of suoh a decree is relevant when the Magistrate is considering what form of order he should make Under Section 488 and the Magistrate should make it dear in his order that any. thing paid under the deoree of the civil Court will be taken into account against anything which he may order to be paid.
It is significant to note that the Calcutta view in Saraswati Debee v. Narayandas Chat, terji A.I.R. 1932 Cal 693, has not been ap. proved of, by the Division Bench of the Bombay High Court.
27. On examination of the relevant provisions of Section 483 and the aforesaid authorities, I am of opinion that the view taken by the Allahabad High Court and the Punjab High Court is the correct view. The view taken by the Calcutta High Court, Lahore High Court and the Saurashtra High Court is not the correct view in my opinion, if I may say so, with great respect.
28. In my opinion, the Court is entitled to inquire into the anterior circumstances that led to each an agreement. In the instant case, on examination of those circumstances, it is found that this petitioner (husband) kept a mi a trees. The wife was, therefore, compelled to live separate and agreed to live separate and such an agreement to live separate and get maintenance amount was entered into. Even thereafter the husband for sometime, did not pay the amount. He refused and neglected to pay. The wife was obliged to take recourse to the remedy provided in Section 488 (1) of the Code. Even in such a proceeding, the husband made baseless allegations against the wife. Even his written statement revealed that he wanted to back out of this agreement. He even did not take up the contention that the wife was living separate on account of mutual consent. The wife was obliged, in view of the compelling circumstances brought about by the husband, to live separate and so she agreed to live separate and take maintenance. On account of keeping of a mistress, the wife was entitled to live pirate. There was sufficient reason for her to live separate. It is not a case where the wife, independent of circumstances, without; any compulsion of events or circumstances :out of her own free will and volition has chosen to live separate. That being so, it could not be said that the wife was living separate by mutual consent. The learned Magistrate has, therefore, rightly come to the conclusion that there is no bar as has been contended, in view of the provisions of 8. 488 of the code.
29. This was the only contention raised before me on behalf of the petitioner husband and that contention fails. It is, therefore evident that the petition fails.
30. It is significant to note that so far as other facts required to be proved and which are held proved, there is evidence which has been found to-be acceptable and reliable. this Court cannot, therefore, interfere with that finding and that appears to be the reason why the learned Advocate appearing for the husband has not raised any other point. The result is that the petition fails.
31. The revision petition is dismissed.
